THIRD MEETING OF THE JUDICIAL GROUP ON STRENGTHENING

JUDICIAL INTEGRITY

COLOMBO, SRI LANKA 10-12 JANUARY 2003

INTRODUCTION

1. The Third Meeting of the Judicial Group was convened in

Colombo, Sri Lanka on January 10, 11 and 12 2003.1 The meeting was

funded by the United Nations Centre for International Crime Prevention

(UNCICP), and was organized with the assistance of the Government of

Sri Lanka and the Marga Institute, Colombo. The purposes of this

meeting were:

(a) To review the mechanisms utilized in the pilot programmes in the

three focus countries: Uganda, Sri Lanka and Nigeria, to diagnose

systemic weaknesses in the judicial system;

(b) To share experiences in addressing the systemic weaknesses

identified in the surveys of court users and other stakeholders and

through the other mechanisms employed in the focus countries;

1 Two previous meetings of the Judicial Group were held in Vienna and

Bangalore in April 2000 and February 2001 respectively. A Round-Table Meeting of Chief Justices representing civil law and other legal systems was convened by the Chairman of the Judicial Group in November 2002 at the Peace Palace at The Hague. The purpose of that meeting was to review and revise the Draft Bangalore Code of Judicial Conduct which the Judicial Group had adopted in February 2002. The Bangalore Principles of Judicial Conduct emerged from that meeting.

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(c) To consider (i) what steps ought to be taken to secure the

passage of the Bangalore Principles of Judicial Conduct to the UN

General Assembly; and (ii) what measures should be adopted by

national judiciaries to provide a mechanism to implement these

principles;

(d) To consider a draft Code of Conduct for Judicial Employees; and

(e) To decide on future meetings and/or activities of the Judicial

Group.

MEMBERSHIP

2. The Judicial Group was chaired by HE Judge Christopher

Weeramantry (former Vice-President of the International Court of

Justice). The other participants were Chief Justice M L Uwais (Nigeria);

Chief Justice B A Samatta (Tanzania); Chief Justice B J Odoki

(Uganda); Deputy Chief Justice Pius Langa (South Africa); Chief Justice

N K Jain (Karnataka, India); Justice K M Hasan (Bangladesh); and Chief

Justice K N Upadhyay (Nepal). On the invitation of the Judicial Group,

Chief Justice Hilario G Davide Jr (Philippines) and Deputy Chief Justice

Dr Adel Omar Sherif (Egypt) also participated as special guests. Chief

Justice Sarath N Silva (Sri Lanka) was absent. The rapporteur was

Justice Michael Kirby (High Court of Australia).

3. The Hon P N Bhagwati (Chairman of the UN Human Rights

Committee) and Dato' Param Cumaraswamy (UN Special Rapporteur on

the Independence of Judges and Lawyers) participated as observers.

3.

The resource persons were Mr Jeremy Pope (Executive Director of

Transparency International), Mr Petter Langseth (Programme Manager,

Global Programme Against Corruption, UNCICP), and Mr Keith

Mackiggan (Justice and Human Rights Adviser, Department for

International Development, United Kingdom). Dr Nihal Jayawickrama,

the Coordinator of the Judicial Integrity Programme, functioned as

Secretary to the Judicial Group.

INAUGURATION OF THE THIRD MEETING

4. The inaugural session of the Third Meeting took place at 10.00 am

on Friday 10 January 2003 in the Ballroom of the Hotel Lanka Oberoi in

the presence of a large gathering of Sri Lankan judges, cabinet

ministers, officials and other citizens. Representatives of the Diplomatic

Corps and of civil society organizations, including the media, also

attended. The Prime Minister of Sri Lanka, the Hon. Ranil

Wickremasinghe MP, was the chief guest.

5. The proceedings began with the lighting of the ceremonial lamp.

In his introductory speech, Dr Nihal Jayawickrama welcomed the

members of the Judicial Group and explained its conception,

development and activities. He emphasised the importance of the timing

of the meeting given the concurrent negotiations designed to bring an

end to civil conflict in Sri Lanka. He referred to the long tradition of the

judiciary of Sri Lanka and to the need in Sri Lanka and elsewhere for the

judiciary to play a pivotal role in strengthening the integrity of judicial

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systems. Judge Weeramantry, in his remarks from the chair, drew

attention to the commonalities that existed between the differing legal,

religious, philosophical and social traditions of all countries of the world.

He emphasised the need to reinforce integrity to ensure the acceptability

of the judgments of courts. He pointed, in the context of the work of the

International Court of Justice (of which he had until recently been a

member) to the absence of coercive enforcement save for respect and

compliance with the law. It was this feature, also common in domestic

jurisdiction, that laid emphasis upon the maintenance and strengthening

of judicial integrity.

6. Inaugurating the meeting, the Prime Minister of Sri Lanka, the Hon

Ranil Wickremasinghe MP, congratulated the Judicial Group on the

progress it had so far achieved, and referred in particular to the

Bangalore Principles of Judicial Conduct. He referred to the survey of

court users and other stakeholders conducted in Sri Lanka by the Marga

Institute, and assured that his government, which was committed to

good governance, would recommend to parliament such remedial action

as might be warranted. He insisted that the integrity of the judiciary

should be seen in the wider context of good governance. Without

integrity in government, at all levels and in all branches, efforts to secure

peace and security and to promote economic development, would

founder. He lauded the role of the Supreme Court of India in nation

building, and observed that if the Supreme Court of his own country had

similarly fulfilled its mission of protecting the rights of different groups,

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recent history might have taken a different turn, and Sri Lanka might

have been spared the trauma of an armed struggle.

7. The Prime Minister emphasized the importance of sustaining

judicial independence by means of regional human rights arrangements.

He proposed the consideration of an Asian Convention on Human

Rights, which would include principles supporting judicial independence.

He envisaged the establishment of a regional court or tribunal with

jurisdiction to resolve issues arising between the citizen and government

after national remedies had been exhausted, thereby applying and

enforcing a common standard. He acknowledged that such an idea

might have opponents at the start and seem controversial. However, he

said that if five or six like-minded countries of the region were willing to

join in such an endeavour, Sri Lanka would be amongst them.

8. The keynote address was given by the Judicial Group's

rapporteur, Justice Michael Kirby (Australia). He said that the work of

the Judicial Group constituted an alternative vision for humanity to that

of the power of capital and weapons. The rule of law, constitutionalism

and defence of human rights depended on a judiciary of courage and

integrity. He paid tribute to the work of the International Court of Justice

and other international tribunals and to the UN agencies that supported

work such as that of the Judicial Group. He speculated on the future

activities of the Group and ways to make the Bangalore Principles more

effective in countries of differing legal and social traditions. Chief Justice

Uwais (Nigeria) proposed the vote of thanks and recalled that his

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previous visit to Sri Lanka had been in the height of the armed conflict,

as a member of an international commission invited to inquire into the

circumstances leading to the death of two army generals.

REVIEW OF MECHANISMS

9. Survey instruments: The Group had before it reports of national

surveys of court users and other stake-holders in the justice systems in

Nigeria, Uganda and Sri Lanka.2 These surveys were based on

instruments approved at the Bangalore meeting. The reports were

explained by Chief Justice Uwais and Chief Justice Odoki and, in

respect of Sri Lanka, by Mr Basil Ilangakoon, Executive Vice-Chairman

of the Marga Institute. Chief Justice Davide (Philippines) referred to the

Action Programme for Judicial Reform in his country, and explained a

Blueprint developed by the Philippines judiciary to combat actual and

perceived problems of corruption and inefficiency in the judiciary.

10. At the close of a searching review of the surveys, their

methodology and outcomes, the Judicial Group agreed as follows:

(a) Since the nature and extent of the problems will vary as between

each country in which a survey is intended to be undertaken, the

2 Centre for Basic Research, Final Draft Report on Integrity in Uganda

(November 2002); The Marga Institute (Sri Lanka Centre for Development Studies), A System Under Seige – An Inquiry into the Judicial System of Sri Lanka (September 2002); Nigerian Institute of Advanced Legal Studies, Summaries of Findings of Surveys conducted in Lagos and Borno States (September 2002).

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design and implementation of the survey should ordinarily be

planned and carried out in close consultation with the Chief Justice

or other body responsible for strengthening integrity in the judiciary

in that country.

(b) It may be useful to integrate the survey with the statements

contained in the Bangalore Principles.

(c) The survey should be concerned with the reality of integrity and not

simply with perceptions. It should be concerned with facts and not

mere gossip or assumptions. It is important, in questions and in

investigations related to the survey, to ensure that presuppositions

are avoided.

(d) Four principles should govern the conduct of a survey, namely:

(i) Judges should ordinarily be involved in the design of the

survey and be invited to comment on the survey instrument before

distribution;

(ii) The survey should be conducted to explore data on judicial

performance and should not be confined to issues of corruption

only;

(iii) The results of the survey should be integrated into the

education and training of judges and other court personnel; and

(iv) The conduct of the survey should be transparent and the

public should be informed of it and of its outcome and significance.

(e) With funds provided by the DFID-UK and by UNCICP, desirably

within a period of six months, and through a body that specializes in

survey analysis, the survey instruments employed and the data

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gathered in Nigeria, Sri Lanka and Uganda should be assessed and

evaluated in order to maximize their utility.

11. Focus Group Consultations: Chief Justice Odoki described the

focus group consultations which were conducted in Uganda, with the

Judicial Integrity Committee (JIC) headed by a Supreme Court Judge

travelling throughout the country meeting groups of civic leaders, court

users, judicial officers and other actors in the judicial system including

lawyers, the police and prison officers. The objective of that exercise

was to ascertain and understand the causes of the negative public

image of the judiciary, and to solicit suggestions on measures that could

be employed to reverse that image. Based on these discussions, the JIC

proposed a Plan of Action.3 These included several short, medium and

long-term measures which the judiciary could undertake to address

concerns regarding (a) judicial conduct, (b) corruption in the judiciary, (c)

delay in the disposal of cases, (d) mysticism of the judicial process, (e)

execution of court process, and (f) administration of the estates of

deceased persons. The JIC also proposed a revised code of judicial

conduct based on the Bangalore Draft. The Chief Justice explained that

this exercise brought problems affecting the judiciary into the public

domain, and proved more effective than questioning by an external

investigator conducting a survey.

3 Judicial Integrity Committee, Plan of Action for Strengthening Judicial

Integrity (30 May 2002).

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12. National Workshop of Stakeholders: Chief Justice Odoki

described the national workshop of stakeholders held in Jinja, Uganda,

in December 2002 to examine the survey report. He tabled the report of

the workshop containing its recommendations.4 He said that the

workshop of 80 participants amplified and added quality to the survey

findings, and while also validating them, made the report “more realistic,

more living”. The next step would be a Judges Conference which was

scheduled for three days in late January 2003.

13. Case Audit: The Coordinator informed the Judicial Group

that a case audit will commence shortly in Sri Lanka for the purpose of

identifying the stages in a judicial proceeding at which inordinate delays

take place. A checklist had been prepared for this purpose.

REMEDYING SYSTEMIC WEAKNESSES

14. Systemic weaknesses: The Judicial Group examined systemic

weaknesses identified in the surveys of court users and other stake-

holders conducted in the pilot studies. They noted that areas for

attention included:

(a) Lack of adequate training for judges;

(b) Delay and lethargy in the judicial system;

(c) Length of court proceedings;

4 Workshop on Judicial Integrity in Uganda (Jinja, 15-17 December

2002).

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(d) Lack of skill in the English language amongst some judges;

(e) The disappearance of court records;

(f) Prejudice;

(g) Inappropriate socialising of judges and lawyers;

(h) Variations in sentencing;

(i) Delay in delivering judgments;

(j) Expensive private legal serves; and

(k) Unofficial payments required to be made for various administrative

activities inherent in the judicial process.

15. Remedying systemic weaknesses: In response to these reports

the members of the Judicial Group agreed as follows:

(a) The Judicial Group noted that in many jurisdictions, the quality of

legal education was not of an acceptable standard; that one could

graduate without any knowledge of legal philosophy, international

law, international human rights and humanitarian law, or

environmental law; that judges who were products of such law

schools would be inadequately equipped; that due to lack of training

many judges were unaware of what went on in other jurisdictions;

and that judges of superior courts often felt that they did not require

continuing legal education. Accordingly,

(i) It was necessary to institute training programmes for judges

on a regular basis, while senior judges should conduct

seminars to which junior judges were invited. In this

connection, reference was made to the Philippines Judicial

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Academy, where attendance was mandatory and performance

in courses was taken into account in promotions.

(ii) Where the language of legal literature (ie law reports,

appellate judgments, etc) is different from the language of

legal education, it is imperative that instruction in the former

should be provided to both lawyers and judges.

(iii) Those responsible for judicial and legal education should be

informed of the need for legal instruction in such areas as

International Law, including International Human Rights and

Humanitarian Law; International Environmental Law; and

Legal Philosophy.

(b) Judicial officers must take responsibility for reducing delay in the

conduct and conclusion of court proceedings and discourage

activities of the legal profession causing undue delay. Judicial officers

should institute transparent mechanisms to allow the judiciary, the

legal profession and litigants to know the status of court proceedings.

(One method suggested was the monthly circulation among judges of

a list of pending judgments). Where no legal requirements already

exist, standards should be adopted by the judges themselves and

publicly announced in order to ensure due diligence in the

administration of justice.

(c) Judicial officers must take necessary steps to prevent court records

from disappearing or being withheld. Such steps should include the

computerisation of court records. They should also institute systems

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for the investigation of the loss and disappearance of court files.

Where wrong-doing is suspected, they should ensure the

investigation of the loss of files, which is always to be regarded as a

serious default. In the case of lost files, they should institute action to

reconstruct the record and institute procedures to avoid such loss.

(d) Where they do not already exist and within any applicable law, the

judiciary should introduce means of reducing unjustifiable variations

in criminal sentences in like cases including:

(i) By the introduction of sentencing guidelines and like

procedures;

(ii) By securing the availability of relevant sentencing statistics and

data; and

(iii) By judicial education, including the introduction of a judicial

handbook concerning sentencing standards and principles

(Reference was made to the Bench Book in the Philippines).

Such initiatives should observe due respect for the proper role of

judicial discretion in sentencing and should be transparent so as to be

known to the judiciary, the legal profession and to litigants.

(e) Recognising the fundamental importance of access to justice to

ensure true equality before the law, the high costs of private legal

representation and the typical limits on the availability of public legal

aid, Judges should consider, in accordance with any legal provisions

that may apply and with the consent of any unrepresented party but

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acting in cooperation with the legal profession, various initiatives

including:

(i) The encouragement of pro bono representation by the legal

profession of selected litigants;

(ii) The appointment of amici curiae or other representatives to

protect interests that would otherwise be unrepresented in

proceedings; and

(iii) The provision of permission to appropriate non-qualified

persons to represent parties before a court.

Judges should take appropriate opportunities to emphasise the

importance of access to justice, given that such access was essential

to true respect for constitutionalism and the rule of law.

(f) Having regard to reports of unofficial payments for purposes such as

the calling up of files, the issuing of summonses, the service of

summonses, securing copy of evidence, the obtaining of bail, the

provision of a certified copy of a judgment, expedition of cases, the

delay of cases, the fixing of convenient dates and the rediscovery of

lost files, Judges should consider:

(i) The display of notices in court buildings and elsewhere where

they might be seen by relevant persons, forbidding all such

payments.

(ii) The appointment of court vigilance officers and users

committees together with appropriate systems of inspection to

combat such informal payments;

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(iii) The introduction of computerisation of court records including

of the court hearing schedule;

(iv) The introduction of fixed time limits to prescribe legal steps that

must be taken in the preparation of a case for hearing; and

(v) The prompt and effective response by the court system to

public complaints.

To ensure the effectiveness of such measures and the prohibition of

informal payments by users of the court system, Judges should, as

far as possible, address the issue of the adequacy of the

remuneration of court officers.

16. It was generally agreed that the Bangalore Principles and the

foregoing resolutions in response to the pilot surveys should be made

known by the members of the Judicial Group to their judicial colleagues

and to other judges in participating and non-participating countries

through judicial meetings, conferences and suitable publications.

THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT

17. The chairman tabled the Bangalore Principles of Judicial Conduct,

which had emerged from the Round-Table Meeting of Chief Justices

held in the Peace Palace at The Hague in November 2002. Represented

at that meeting were the Judiciaries of Mexico, Brazil, Norway,

Netherlands, France, Czech Republic, Egypt, Mozambique and the

Philippines. Also participating were the Judges of the International Court

of Justice from Madagascar, Hungary, Germany, Sierra Leone, United

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Kingdom, Brazil, Egypt, and the United States of America. The Hague

Meeting was preceded by extensive consultations, undertaken with the

cooperation of the UN Special Rapporteur, with Judges from over sixty

countries, including the Consultative Council of European Judges

established by the Council of Europe, and the Judiciaries of Central and

Eastern European countries, as well as of other Asian, African, Pacific

and Caribbean countries. The chairman described the course of the

deliberations at The Hague.

18. Dato' Param Cumaraswamy informed the Judicial Group that The

Bangalore Principles (translated into the United Nations languages)

were annexed to his report to the forthcoming session of the United

Nations Commission on Human Rights. He intended to urge the

Commission to give “careful consideration” to The Bangalore Principles

and either “endorse” or “note” them. His report will shortly be posted on

the United Nations Website and thus made accessible throughout the

world. The Judicial Group welcomed this development. Meanwhile,

suggestions were made that:

(a) Discussions be held with receptive Foreign Ministries with a view

to The Bangalore Principles being presented for “adoption” by the

United Nations General Assembly.

(b) The Bangalore Principles be forwarded to the Crime Commission

of the United Nations with a view to securing a resolution

requesting member states to implement it.

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The Judicial Group agreed that whichever route was followed to secure

universal acceptance of The Bangalore Principles, their “ownership”

must remain with national judiciaries and, accordingly, no part of the text

should be amended except by representatives of national judiciaries.

19. Deputy Chief Justice Sherif (Egypt) informed the meeting that the

Chief Justice of Egypt would be presenting The Bangalore Principles to

the meeting then in progress in Mauritius of the Arab Federation of

Constitutional Courts and Councils. Dr Jayawickrama reminded the

meeting that The Bangalore Principles had already been presented by

the Chief Justice of Mexico to a similar gathering of Chief Justices from

Spanish-speaking countries held in Cancun in November 2002. It was

agreed that The Bangalore Principles be disseminated at forthcoming

legal and judicial meetings, including the Commonwealth Law

Conference (Melbourne, April 2003), World Jurists Association (Sydney,

August 2003), and LAWASIA (Tokyo, September 2003). Chief Justice

Davide undertook to present it to the forthcoming Conference of Asian-

Pacific Chief Justices in Tokyo in September 2003.

20. The Judicial Group agreed that the Chairman, assisted by the

Coordinator, should write to national Chief Justices in all countries,

informing them of The Bangalore Principles and of the work of the

Judicial Group, and inviting comments thereon. In this connection, it was

agreed that an appropriate letterhead for the Judicial Group be prepared

containing the names of its members, etc., the address and contact

information being that of the Coordinator.

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21. A discussion on what measures ought to be recommended for the

implementation of The Bangalore Principles was deferred, pending the

preparation of a report on mechanisms already in existence at the

national level for the implementation of codes of judicial conduct.

PROPOSED CODE OF CONDUCT FOR JUDICIAL EMPLOYEES

22. The Coordinator tabled a Draft Code of Conduct for Judicial

Employees. He explained that this was based on the Model Code of

Conduct for Non-judicial Employees prepared by the American

Judicature Society. He had also drawn upon three other state codes now

in operation in the United States.

23. The Judicial Group considered the draft. It noted suggested

textual amendments, including a number proposed by Chief Justice

Davide (Philippines). The Judicial Group then resolved that:

(a) The document should be reformulated as guidelines and not as a

code.

(b) Such guidelines should contain a preamble explaining how the

integrity of the conduct of court employees is related to the

promotion of judicial integrity which cannot be the concern of

judges only but involves all those engaged in judicial

proceedings.

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(c) Any such guidelines should be in addition to, not in derogation of,

any legal, regulatory or contractual undertakings given by court

employees concerning integrity in the performance of their duties.

(d) Members of the Judicial Group should take steps to distribute the

amended version of the guidelines to court registrars and other

appropriate officers for comment by them.

(e) The draft guidelines should be considered at a future meeting of

the Judicial Group when the Group invited the Chief Justices, the

UN Special Rapporteur and other interested parties (including

those representative of court employees) to submit suggested

amendments and additions.

FUTURE MEETINGS AND ACTIVITIES OF THE JUDICIAL GROUP

24. The Judicial Group considered a document on "A Possible Way

Forward" which was tabled at the meeting containing suggestions for

intensifying the work of the Group and widening its participation. The

Judicial Group agreed that:

(a) enquiries be made to establish a Website on the Internet for

the Judicial Group which would serve, inter alia, as a

documentation centre;

(b) action be taken to capture and exchange emerging best

practice on judicial reform, including case management,

sentencing guidelines, and computerization of case records;

(c) continuing education material for judges be developed,

focusing on the need to sensitize them, in particular, to

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international law, international human rights and humanitarian

law, environmental law, and philosophical perspectives;

(d) principles, standards and instruments relating to the judicial

process (eg. Judicial independence) be further developed or

updated;

(e) a manual on the judicial reform process be developed,

capturing the experience gained to date;

(f) the feasibility of institutionalizing the Judicial Group and

establishing a secretariat be examined. The advantages of

locating the secretariat in a developing country were noted;

(g) while expressing appreciation for the support that had been

provided to its work by DFID, UK, the exploration of funding

from the "Utstein" Group (Germany, Netherlands, Norway and

the United Kingdom) for the future activities of the Judicial

Group was authorized;

(h) A Fourth Meeting of the Judicial Group be convened, the

timing, venue and participation in such meeting to be

determined by the chairman in consultation with the

Coordinator.

COMPOSITION OF THE JUDICIAL GROUP

25. On the invitation of the Judicial Group, Chief Justice Davide

(Philippines) and Deputy Chief Justice Dr Adel Omar Sherif (Egypt)

agreed to serve as members of the Judicial Group. The Judicial Group

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noted the absence of Chief Justice S N Silva (Sri Lanka) who would be

taken to have retired from the Judicial Group.

ACKNOWLEDGEMENTS

26. The Third Meeting of the Judicial Group closed with expressions

of appreciation to the Government of Sri Lanka, and in particular to the

Prime Minister who inaugurated the meeting; the Minister of Foreign

Affairs, the Hon. Tyronne Fernando, MP PC, and the Minister of

Constitutional Affairs, Professor G. L. Peries MP, for their hospitality;

and to the Ministry of Foreign Affairs and the Ministerial Security Division

of the Police Department for the assistance and courtesies afforded to

the participants on their arrival and during their stay in the country.

Appreciation was also expressed to the Marga Institute for their

secretarial assistance; to the Colombo Hilton and the Lanka Oberoi

Hotels for providing excellent meeting facilities; to the resource persons,

the chairman, the coordinator and all participants.

THIRD MEETING OF THE JUDICIAL GROUP ON STRENGTHENING

JUDICIAL INTEGRITY

COLOMBO, SRI LANKA

10-12 JANUARY 2003